EVIDENCE AMENDMENT BILL 2008

I rise in support of the Evidence Amendment Bill 2008, which, as you have heard from the member for Blair, is concerned with amendments to the rules of evidence. The rules of evidence applied in Australia regulate the conduct of disputes in courts and tribunals. They determine the evidence which is admitted and the shape of both the form of proceedings and how courts and tribunals go about deciding disputes. The rules of evidence are a very important part of our system of justice.

I rise in support of the Evidence Amendment Bill 2008, which, as you have heard from the member for Blair, is concerned with amendments to the rules of evidence. The rules of evidence applied in Australia regulate the conduct of disputes in courts and tribunals. They determine the evidence which is admitted and the shape of both the form of proceedings and how courts and tribunals go about deciding disputes. The rules of evidence are a very important part of our system of justice.

Before going to the provisions of the bill, I will start by looking at some of the history of the legislation to which this bill makes amendments, the Evidence Act 1995. The Evidence Act 1995 was a very important milestone in the development of the Australian legal system. It represented a culmination of a task that was commenced by the Australian Law Reform Commission with a reference given to it in July 1979. Before then, the rules of evidence were largely part of the common law developed over many centuries by courts, particularly in the United Kingdom and, after settlement and the establishment of the rule of law in this country, by Australian courts. The rules of evidence could not in any sense have been described prior to the passage of the Commonwealth Evidence Act 1995 as coherent, nor were they well-structured. One English commentator, CP Harvey, described the law of evidence in these terms:

Founded apparently on the propositions that all jurymen are deaf to reason, that all witnesses are presumptively liars and that all documents are presumptively forgeries, it has been added to, subtracted from and tinkered with for two centuries until it has become less of a structure than a pile of builders’ debris.

That is a colourful way of describing the law of evidence but an accurate one. The complexity and need for substantial reform were well recognised, but the courts did not engage in the systematic reform that was needed, probably on the basis that it was a job for the legislature.

Stephen Odgers, who is one of Australia’s pre-eminent experts on the law of evidence, notes in the introduction to his excellent text in relation to the history of the legislation:

For many years, no legislature was prepared to take on such a mammoth task. However, the 1979 reference to the Australian Law Reform Commission created the possibility of comprehensive rationalisation and reform of the law of evidence.

The 1995 act is based on the Australian Law Reform Commission’s several reports produced over eight years through to 1987.

The reference given in 1979, as I have indicated, was to inquire into the possibility of comprehensive rationalisation and reform of the law of evidence. Running through to 1987 there were a series of research reports and discussion papers, an interim report and then a final report in 1987 produced by the Australian Law Reform Commission. That final report contained draft legislation.

The report was then followed in 1991 by the introduction of legislation by both the Commonwealth and New South Wales governments, which was substantially based on, albeit differing in some respects from, the Australian Law Reform Commission’s draft legislation, and in that same year, 1991, the Standing Committee of Attorneys-General gave in-principle support to a uniform legislative scheme throughout Australia.

In 1993 both this parliament and the New South Wales parliament passed an evidence bill which was to come into effect from 1 January 1995. Those acts are virtually identical and are often described as the uniform evidence acts. The Evidence Act which is to be amended by this bill, of course, applies in federal courts and, by agreement, in courts in the Australian Capital Territory. The Evidence Act of New South Wales applies in proceedings before New South Wales courts and in some tribunals.

In 2001 Tasmania passed legislation that essentially mirrors the Commonwealth and New South Wales acts, with some minor differences, and in 2004 Norfolk Island passed legislation that essentially mirrors the Evidence Act of New South Wales. As yet, no other state has adopted similar legislation, but there is a strong movement towards the harmonisation of evidence laws in other states which will be based on the uniform evidence acts. My home state of Victoria agreed in 2007 to introduce a uniform evidence act, and it is to be hoped that Victoria and other states will move quickly to adoption of the uniform evidence legislation.

Uniformity in this area, as the House has heard from the member for Blair and other speakers on the bill, is a very worthwhile aim. Certainly, as a practitioner I know that I can speak for every Australian lawyer and say that it would be far easier to have a single, uniform set of rules of evidence. At present, it is entirely possible for a practitioner to represent a client in the Federal Court in a civil trial, which is governed, of course, by the Commonwealth Evidence Act, and at the same time be representing the same client in a criminal trial arising from the same set of events in a state Supreme Court or a state court, where the trial is covered by quite different state rules of evidence. And it is not just practitioners who are troubled by having to juggle the different rules of evidence from day to day; all Australians should be able to work with a single set of rules for reasons of accessibility, to be able to determine what the law is and, simply, for comprehensibility.

There is not time to deal in any detail with the bill’s provisions, many of which are complex, so to anyone who wishes to see a long explanation of some of the reforms that are contained in this bill I can commend the report of the law reform commissions—that is, the Australian Law Reform Commission, the New South Wales Law Reform Commission and the Victorian Law Reform Commission, who jointly produced the 2005 report on which the bill is based. Before I turn to some of the provisions in this bill, I would acknowledge the work of the legal, policy and administrative officers of all of those law reform commissions who laboured on that report. I would also like to acknowledge the exceptional work of the members of the divisions of the three law reform commissions who worked on the 2005 report. I particularly wish to draw attention to the depth of their experience and their level of eminence in the legal profession, because this should give additional assurance to this parliament of the quality of the recommendations in the report on which this bill is based.

The division of the Australian Law Reform Commission which worked on the inquiry that produced the 2005 report included Professor David Weisbrot, the president of the commission; Professor Anne Finlay; Professor Les McCrimmon; Professor Brian Opeskin; notably, Justice Susan Kiefel, then a judge of the Federal Court but now a judge of the High Court of Australia; Justice Susan Kenny, formerly a judge of the Victorian Court of Appeal, and a serving judge of the Federal Court; and Justice Mark Weinberg, then a judge of the Federal Court of Australia but very recently appointed to the Victorian Court of Appeal.

The division of the New South Wales Law Reform Commission which worked on the inquiry included Justice Michael Adams, a New South Wales Supreme Court judge; Judge Christopher Armitage, at the District Court; James Bennett SC, a deputy Crown Prosecutor; Greg James QC, who is now President of the Mental Health Review Tribunal in New South Wales; Acting Judge Angela Karpin of the New South Wales District Court, who is currently a deputy president of the Administrative Decisions Tribunal; and Professor Michael Tilbury.

The division of the Victorian Law Reform Commission which worked on this inquiry included, again, a very eminent group of lawyers: Justice David Harper of the Victorian Supreme Court; Professor Marcia Neave, then the chairperson of the Victorian Law Reform Commission but now a member of the Victorian Court of Appeal; Iain Ross, who has recently been appointed a judge of the Victorian County Court; and, last but absolutely not least, Justice Tim Smith of the Victorian Supreme Court for whom working on this reference, I suspect, would have been a matter of particular personal satisfaction because Justice Smith was the commissioner in charge of the original work of the Australian Law Reform Commission through the 1980s which led to the report upon which the legislation which came into effect in 1995 was based.

The 2005 report on which this bill is based is indeed a credit to all involved in its production, and we should feel particularly indebted to the serving judges who found the time despite their work as serving judges to contribute to the report.

I will turn to some of the recommendations of the law reform commissions’ report which led to the provisions that we see in the Evidence Amendment Bill 2008. It is worth noting that the recommendations of the law reform commissions’ report are based on very wide consultation and indeed on the experience of 10 years of operation of the Commonwealth and New South Wales legislation in federal courts and in New South Wales courts respectively.

Before I do that, I will note the provenance of the report because it has a real significance over and above the recommendations that it contains. It is an unusual situation for the Australian Law Reform Commission to be required to work in conjunction with state law reform commissions, as occurred here—in this case, the Victorian Law Reform Commission and the New South Wales Law Reform Commission. The reason the report was produced in this way was that both of those state law reform commissions were conducting similar inquiries into the operation of the uniform Evidence Act, the Victorian inquiry being directed to determine whether or not it was appropriate to introduce the uniform act in Victoria. As I have indicated, the final report, which is entitled Uniform evidence law, completed by these three law reform commissions, was submitted to the Commonwealth Attorney-General and the New South Wales and Victorian attorneys-general on 5 December 2005. It was tabled in this parliament and the Victorian parliament and released in New South Wales on 8 February 2006.

The purpose of the inquiry was to identify and address any defects that had been disclosed in the nearly 10 years of operation of the uniform evidence acts and to maintain and further the harmonisation of the laws of evidence throughout Australia. The significant conclusion of this joint inquiry was that the uniform evidence acts were working well and that there were no major structural problems with the legislation or with the underlying policy of the acts. While, as anyone who reads the weighty report will note, there were some areas of concern identified—and they are addressed in the report—the commissions concluded that a major overhaul of the uniform evidence acts was neither warranted nor desirable. It would seem to me that that kind of conclusion, after an inquiry of the length and depth of this one, should add impetus to the push for uniformity of evidence laws throughout Australia.

There are many recommendations in the report. Most of them are taken up in the bill now before the House. It is to be noted that the New South Wales parliament has already passed legislation that will implement the recommendations of the report. The Attorney-General, in introducing this bill, indicated that a majority of the recommendations, incorporated as they have been in model evidence provisions produced by the Standing Committee of Attorneys-General through to 2007, will be implemented by the bill. There are a couple of exceptions to that, the first being the provisions and recommendations dealing with a general confidential relationships privilege and the provisions extending client legal privilege and public interest immunity to pre-trial proceedings. As the Attorney-General has explained, the government is still considering its response to the Australian Law Reform Commission’s recommendations relating to client legal privilege claims in federal investigations, which are dealt with in the very recently tabled report Privilege in perspective, which the Attorney-General tabled in January 2008. It deals with client legal privilege in a great deal more detail than the 2005 joint report of the law reform commissions, and that is why it is appropriate that there not be immediate reforms and changes to the uniform Evidence Acts in respect of that subject. I also note, as did the Attorney-General in introducing the legislation before the House, the election policy commitment made by the Australian Labor Party in a policy entitled Government information: restoring trust and integrity. That made commitments in respect of so-called journalist shield laws. Again, I look forward to working on implementation of those particular commitments. It is a set of further reforms that will make some changes to the uniform evidence acts.

I see that I am not going to have anything like the necessary time to deal with the provisions introduced by the bill before the House. However, I would like to mention the provisions which deal with competence. Competence is an area which shows perhaps better than any other area how much change there has been in the law of evidence over the last two or three centuries. In the 17th and 18th centuries the common-law rule, which to modern eyes seems an extraordinary one, was that parties to litigation were regarded as incompetent to give evidence. Presumably the position was motivated by a fear of manufactured evidence. That position was not changed for civil cases until the UK’s Evidence Act 1851, and in criminal cases it was not until the end of the 19th century that the accused was allowed to give evidence for the defence in all criminal cases. So anyone would see that we have had a very substantial shift from the position over the last couple of centuries to the position that we now have—a possibility of accused persons giving evidence for the defence in all criminal cases—and, of course, it is accepted now by everyone that parties to litigation, both the plaintiff and the defendant and those associated with them, are entirely able to give evidence.